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[2006] ZACC 1
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African Christian Democratic Party v Electoral Commission and Others (CCT 10/06) [2006] ZACC 1; 2006(3) SA 305 (CC); 2006(5) BCLR 579 (CC) (24 February 2006)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
10/06
AFRICAN CHRISTIAN
DEMOCRATIC PARTY Applicant
and
THE ELECTORAL
COMMISSION First Respondent
THE MINISTER OF
PROVINCIAL AND LOCAL
GOVERNMENT Second
Respondent
THE MINISTER OF LOCAL
GOVERNMENT
AND HOUSING (WESTERN
CAPE) Third Respondent
Heard on: 23 February
2006
Decided on: 24
February 2006
JUDGMENT
O’REGAN J:
This is an
urgent application for leave to appeal against a judgment of the
Electoral Court delivered on 15 February 2006
1
in which the Electoral Court refused to interfere with a decision
by the Electoral Commission excluding the applicant, the African
Christian Democratic Party, from contesting the imminent local
government elections to be held in the Cape Town Metropolitan
Council. The matter is clearly one of great urgency as the
elections are due to be held in less than a week’s time on 1

March 2006. This judgment has therefore been prepared in haste.
The application was lodged in this Court on 20 February 2006; and
on 21 February 2006 the first respondent lodged a notice of
intention to oppose the application. On 22 February, this Court
enrolled the matter for an urgent hearing on 23 February at
15h00.
At the end of the hearing, the Court requested the Electoral
Commission to furnish an affidavit by noon on 24 February
indicating whether it would be possible to hold elections in the
Cape Metropolitan Council as planned on 1 March 2006 if relief
was
ordered in favour of the applicant. The Commission lodged its
affidavit timeously on 24 February indicating that although
it
would create significant difficulties for the Commission, and would
place the elections at risk, such an order would not render
the
holding of the elections impossible. The Court is indebted to the
Commission for its timely filing of the affidavit and
for the
positive and candid manner in which it informed the Court of the
position. The Court also asked the applicant to file
an affidavit
in response to the Commission’s affidavit by 16h00 today. That
affidavit too has been filed. We are grateful
also for the
applicant’s assistance.
The crisp
issue we must decide is whether the Electoral Commission’s
decision not to certify the applicant and its candidates,
effectively disqualifying them from contesting the election in the
Cape Metropolitan area, should be reviewed and set aside.
The
Electoral Commission reached its decision on the ground that the
applicant had not paid the prescribed deposit in terms
of sections
14 and 17 of the Local Government: Municipal Electoral Act, 27 of
2000 (the
Municipal Electoral Act).
Section 14(1)
of the
Municipal Electoral Act provides
as follows:
“Requirements for parties
contesting election by way of party lists
(1) A party may contest an
election in terms of
section 13
(1) (a) or (c) only if the party by
not later than a date stated in the timetable for the election has
submitted to the office
of the Commission's local representative-
(a) in the prescribed format-
(i) a notice of its
intention to contest the election; and
(ii) a party list; and
(b) a deposit equal to a
prescribed amount, if any, payable by means of a bank guaranteed
cheque in favour of the Commission.”
Section 17 of the
Act provides as follows:
“
Requirements for ward
candidates to contest election
(1) A person may contest an
election as a ward candidate only if that person is nominated on a
prescribed form and that form is
submitted to the office of the
Commission's local representative by not later than a date stated in
the timetable for the election.
(2) The following must be
attached to a nomination when the nomination is submitted to the
Commission:
(a) In the case of an
independent ward candidate, a prescribed form with the signatures of
at least 50 voters whose names appear
on the segment of the voters'
roll for any voting district in the ward;
(b) a prescribed acceptance of
nomination signed by the ward candidate;
(c) a certified copy of the
page of the candidate's identification document on which the
candidate's photo, name and identity number
appear; and
(d) a deposit equal to a
prescribed amount, if any, payable by means of a bank guaranteed
cheque in favour of the Commission.
(3) The Commission must accept
a nomination submitted to it and allow the nominated person to stand
as a candidate in the ward if
section 16 (1) and subsections (1) and
(2) of this section have been complied with.”
It is plain
from these provisions that no political party and no ward candidate
may contest an election unless it has paid the
prescribed deposit
by the deadline set by the Electoral Commission. In this case, the
deposit prescribed to contest elections
in metropolitan areas was
R3000.
Local
government elections are to be held in all 283 municipalities in
South Africa on 1 March 2006. Elections were last held
on 6
December 2000 and according to the provisions of the Constitution
2
and the Local Government: Municipal Structures Act
3
must be held by not later than 6 March 2006. On 6 January 2006,
the Electoral Commission published the timetable for the 2006
local
government elections. According to the timetable for the
elections, the prescribed date and time for compliance with the
provisions of
sections 14
and
17
of the
Municipal Electoral Act was
17h00 on 19 January 2006.
4
The question
that arises for consideration is whether the applicant did pay a
deposit as contemplated by
sections 14
and
17
in respect of the
Cape Town Metropole. It is common cause that the applicant both
lodged a party list and nominated ward candidates
timeously on 19
January 2006 at the Cape Town offices of the Electoral Commission,
but that no deposit was paid at the Cape Town
office. It is also
common cause that a bulk payment of R283 000 was made by the
applicant by way of bank guaranteed cheque
5
to the National Office of the Electoral Commission in Pretoria on
17 January 2006 in respect of a range of municipalities indicated
on a list accompanying the bulk payment and that the Cape Town
Metropolitan area was not included in that list. Finally it is
common cause that the omission of the Cape Town Metro from the list
was an error on the part of the applicant.
The facility
for centralised payments was introduced by the Electoral Commission
for this set of elections, although no regulations
or legislation
governing the system was promulgated. The system permitted a
political party contesting more than one municipality
to furnish
one bank guaranteed cheque in respect of all the deposits due in
relation to the municipalities it was contesting
to the Electoral
Commission office in Pretoria. The system was discussed and
explained at meetings of Party Liaison Committees
6
convened by the Electoral Commission with representatives of the
political parties contesting the elections.
In response to
the bulk payment, the Electoral Commission wrote to the applicant
stating that “we confirm that the Electoral
Commission has
received a bank guaranteed cheque in the amount of R283 000. We
further confirm that the amount paid covers the
election deposits
in respect of the attached municipalities.”
Between making
the bulk payment on 17 January and the deadline for the filing of
notices contest elections and party lists on
19 January, the
applicant decided not to contest some of the municipalities in
respect of which it had paid the bulk deposit.
Although it did not
write to inform the Electoral Commission of this fact, it did not
lodge notices to contest elections in
those areas nor did it lodge
party lists. On 19 January, therefore, when the deadline passed,
the Commission was holding an
amount of R10 000 on behalf of the
applicant which had not been specifically allocated as a deposit in
respect of any contested
municipality.
On 24 January
2006, the applicant was informed by the Electoral Commission’s
Cape Town office that it had not received a deposit
in respect of
the Cape Metro Council. The applicant then informed the Electoral
Commission that it had a surplus of funds for
the payment of
deposits as a result of the bulk payment made on 17 January but the
respondent indicated that it would not allocate
those funds as a
deposit for the Cape Town Metro. On 27 January the applicant’s
representative met with officials from the
Electoral Commission to
seek to resolve the matter without success. The Electoral
Commission’s view was that the provisions
of
sections 14
and
17
are peremptory and that it did not have the power to condone
non-compliance with the provisions.
The applicant
then launched proceedings in the Electoral Court on 1 February
2006. We were informed from the bar that the Electoral
Court did
not hold a hearing but received written submissions from the
Electoral Commission and the applicant. The Electoral
Court handed
down a written judgment on 15 February dismissing the applicant’s
complaint. It is against that judgment that
the applicant now
appeals.
It will be
helpful to bear in mind the provisions of the Electoral Commission
Act which determine the powers of the Electoral
Court in disputes
of this sort.
Section 20
of the
Electoral Commission Act 51 of
1996
provides as follows:
“
(1) (a) The Electoral Court
may review any decision of the Commission relating to an electoral
matter.
(b) Any such review shall be
conducted on an urgent basis and be disposed of as expeditiously as
possible.
(2) (a) The Electoral Court may
hear and determine an appeal against any decision of the Commission
only in so far as such decision
relates to the interpretation of any
law or any other matter for which an appeal is provided by law.
(b) No such appeal may be heard
save with the prior leave of the chairperson of the Electoral Court
granted on application within
the period and in the manner
determined by that Court.
(c) Such an appeal should be
heard, considered and summarily determined upon written submissions
submitted within three days after
leave to appeal was granted in
terms of paragraph (b).
…”
.
The first
question to be considered is whether this Court has jurisdiction to
consider an application for leave to appeal against
the Electoral
Court. The respondent argued that this Court did not have
jurisdiction on two grounds. In the first place, it
relied upon
the provisions of
section 96(1)
of the
Electoral Act, 73 of 1998
which states:
“
The Electoral Court has
final jurisdiction in respect of all electoral disputes and
complaints about infringements of the Code,
and no decision or order
of the Electoral Court is subject to appeal or review.”
The question
of this Court’s jurisdiction to hear matters in the light of
section 96
of the
Electoral Act was
expressly left open by this
Court in
Liberal Party v The Electoral Commission
.
7
The legislation that, in the first place, governs municipal
elections is the
Municipal Electoral Act. Section
3(2) of the
Electoral Act provides
that:
“
This Act applies to an
election of a municipal council or a by-election for such council
only to the extent stated in the Local
Government: Municipal
Electoral Act, 2000 (Act 27 of 2000).”
There is no
provision in the
Municipal Electoral Act which
renders section 96 of
the Electoral Act applicable to disputes arising from municipal
elections. Accordingly, on a proper interpretation
of the
Municipal
Electoral Act, read
with the Electoral Act, section 96 of the
Electoral Act is not applicable to disputes arising from municipal
elections. It is
true that the
Municipal Electoral Act does
not
contain an express provision for an appeal against the decision of
the Electoral Court. However, there is also no express
provision in
the
Municipal Electoral Act stating
that the decision of the
Electoral Court is final. In my view, in these circumstances, it
cannot be said that
section 96
applies to disputes arising from
municipal elections and accordingly cannot on any terms be held to
oust the jurisdiction of this
Court to entertain an appeal. I
cannot accept therefore the respondent’s argument that it could
not have been the intention
of Parliament to provide differently for
provincial and national elections on the one hand and local
government elections on the
other. Legislation should not be
presumed to have intended to oust this court’s jurisdiction when
it does not expressly state
as such. The question of whether this
Court’s jurisdiction in constitutional matters can in fact be
ousted without offending
the Constitution is an important matter
upon which we had little argument and on which it is not necessary
to say more in this
judgment. I should add only that I expressly
refrain from considering the effect of section 96 in relation to
disputes arising
from national or provincial elections and the
matter should be left open as it was in the
Liberal Party
case.
Secondly, the
respondent argued that this Court does not have jurisdiction to
entertain the appeal as it does not raise a constitutional
matter.
This argument too cannot be accepted. Section 19 of the
Constitution entrenches the right of citizens to vote, to form
political parties and to stand for election.
8
Any application for leave to appeal from the Electoral Court
acting in terms of the
Municipal Electoral Act which
raises a
challenge based on an interpretation of that Act in the light of
the rights contained in section 19 will clearly raise
a
constitutional matter and fall within the jurisdiction of this
Court. In this case, the key issue between the parties turns
on
the proper interpretation of
sections 14
and
17
of the
Municipal
Electoral Act. The
applicant argues that in terms of section 39(2)
of the Constitution these provisions need to be interpreted in a
manner which
promotes the spirit, purport and objects of the
Constitution.
9
The
Municipal Electoral Act was
enacted by Parliament specifically
to give effect to the constitutional rights entrenched in
section
19.
Accordingly, its proper interpretation in the light of the
provisions of the Constitution gives rise to a constitutional
matter
within the jurisdiction of this Court.
10
A further factor which makes plain that the matter at hand is a
constitutional one is the fact that the Electoral Commission
is an
institution established by chapter 9 of the Constitution to perform
a vitally important constitutional function.
11
The question whether it has properly performed its functions must,
too, raise a constitutional matter.
The more
difficult question that arises is when it will be in the interests
of justice to entertain such an appeal. This Court
has elaborated
the test of the interests of justice in many cases.
12
Determining the interests of justice requires a consideration of
the prospects of success on appeal, as well as consideration
of the
public interest in the subject matter of the appeal as well as
other considerations. In cases such as this, relevant
also will be
the respect owed to the decisions of the Electoral Court as a
specialist court familiar with the electoral terrain
and the
problems associated with it.
13
In addition, it needs to be borne in mind that electoral appeals
will often be of an extremely urgent nature as is acknowledged
in
section 20(2)(c)
of the
Electoral Commission Act.
14
The
closer the appeals are to the election, the greater the risk
of disruption to the elections. It is clear that elections should
not unnecessarily be disrupted. On the other hand, political
rights are central to a democratic society and their protection
is
an important constitutional purpose.
These two
interests may at times point in opposite directions. For example,
an appeal may raise the question of an applicant’s
political
rights but entertaining the appeal and granting the relief may
result in the disruption of the election in a manner
quite
disproportionate to the right claimed by the applicant. In each
case, the court will therefore have to consider the nature
and
extent of the rights asserted by applicants in the light of any
potential disruption to an election. The timing of the application
for leave to appeal will be of great importance. In this case, the
elections are imminent and disruption to them is a risk.
However,
the political rights at issue involve a large number of voters in
one of our major metropolitan areas and are therefore
substantial.
Moreover, as will appear from what follows, the applicant has shown
good prospects of success. We have also been
informed, as stated
above at para 2, by the Electoral Commission in an affidavit lodged
this morning that should the Court give
its judgment by close of
business today, Friday 24 February, the municipal elections to be
held in Cape Town should not be disrupted.
In the circumstances we
conclude that it is in the interests of justice to grant leave to
appeal. We emphasise however that
this is an exceptional case,
given its closeness to the date of the election. In reaching the
conclusion that it is in the interests
of justice to entertain it
despite that fact, we are persuaded by the significant number of
people whose rights are being affected,
the public importance of
the issue and the fact that the Court’s order should not disrupt
the election. It is necessary now
to consider the merits of the
appeal.
Applicant’s
arguments
The applicant
argues that it complied with the provisions of
sections 14
and
17
of the
Municipal Electoral Act, alternatively
that the steps it
took in respect of the Cape Town Metro constitute substantive
compliance with the Act. The respondent disputes
this.
In order to
determine whether the applicant is correct, it is necessary to
consider the proper interpretation to be given to sections
14 and
17. In so doing, it is important to bear in mind that
section 2
of
the
Municipal Electoral Act provides
that:
“
Any person interpreting or
applying this Act must –
(a) do so in a manner that
gives effect to the constitutional declarations, guarantees and
responsibilities contained in the Constitution;
and
(b) take into account any
applicable Code.”
In
interpreting and applying the Act, therefore, the provisions of
section 19 must be considered. As importantly, however, the
Act
must be construed in the light of the foundational values of the
Constitution which state:
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following values:
…
(d) Universal adult suffrage,
a national common voters roll, regular elections and a multi-party
system of democratic government
to ensure accountability,
responsiveness and openness.”
15
The importance
of these values was emphasised by Sachs J in
August and Another
v Electoral Commission and Others
as follows:
“
Universal adult suffrage on
a common voters’ roll is one of the foundational values of our
entire constitutional order. The achievement
of the franchise has
historically been important both for the acquisition of the rights
of full and effective citizenship by all
South Africans regardless
of race, and for the accomplishment of an all-embracing nationhood.
The universality of the franchise
is important not only for
nationhood and democracy. The vote of each and every citizen is a
badge of dignity and of personhood.
Quite literally, it says that
everybody counts. In a country of great disparities of wealth and
power it declares that whoever
we are, whether rich or poor, exalted
or disgraced, we all belong to the same democratic South African
nation; that our destinies
are intertwined in a single interactive
polity. Rights may not be limited without justification and
legislation dealing with the
franchise must be interpreted in favour
of enfranchisement rather than disenfranchisement.”
16
These
foundational values require a court of law, and the Electoral
Commission, when interpreting provisions in electoral statutes
to
seek to promote enfranchisement rather than disenfranchisement and
participation rather than exclusion. The exercise, however,
remains one of interpretation.
Construed on
its ordinary language,
section 14
of the
Municipal Electoral Act
suggests
that a political party may not contest an election if it
has not, by the prescribed date, lodged with the Commission’s
local
representative three things: a notice of intention to contest
the election; a party list and a deposit in the prescribed amount
payable by means of a bank guaranteed cheque.
17
Similarly
section 17
provides that a ward candidate may not
contest an election unless he or she has been nominated in the
prescribed manner and on
the prescribed form by the due date, and
that form must have been submitted together with the prescribed
deposit to the office
of the Commission’s local office.
18
In construing whether there has been compliance with these
provisions I am mindful of the reasoning of Van Winsen AJA in
Maharaj and Others v Rampersad
:
“
The enquiry, I suggest, is
not so much whether there has been ‘exact’, ‘adequate’ or
‘substantial’ compliance with this
injunction but rather whether
there has been compliance therewith. This enquiry postulates an
application of the injunction to
the facts and a resultant
comparison between what the position is and what, according to the
requirements of the injunction, it
ought to be. It is quite
conceivable that a court might hold that, even though the position
as it is is not identical with what
it ought to be, the injunction
has nevertheless been complied with. In deciding whether there has
been a compliance with the injunction
the object sought to be
achieved by the injunction and the question of whether this object
has been achieved, are of importance.”
19
The question
thus formulated is whether what the applicant did constituted
compliance with the statutory provisions viewed in
the light of
their purpose. A narrowly textual and legalistic approach is to be
avoided as Olivier JA urged in
Weenen Transitional Local Council
v Van Dyk
:
“
It seems to me that the
correct approach to the objection that the appellant had failed to
comply with the requirements of
s 166
of the ordinance is to follow
a common-sense approach by asking the question whether the steps
taken by the local authority were
effective to bring about the
exigibility of the claim measured against the intention of the
legislature as ascertained from the
language, scope and purpose of
the enactment as a whole and the statutory requirement in particular
(see
Nkisimane and Others v Santam Insurance Co Ltd
1978 (2)
SA 430
(A) at 434 A – B). Legalistic debates as to whether the
enactment is peremptory (imperative, absolute, mandatory, a
categorical
imperative) or merely directory; whether ‘shall’
should be read as ‘may’; whether strict as opposed to
substantial compliance
is required; whether delegated legislation
dealing with formal requirements are of legislative or
administrative nature, etc may
be interesting, but seldom essential
to the outcome of a real case before the courts. They tell us what
the outcome of the court’s
interpretation of the particular
enactment is; they cannot tell us how to interpret. These debates
have
a posteriori,
not
a priori
significance. The
approach described above, identified as ‘… a trend in
interpretation away from the strict legalistic to
the substantive’
by Van Dijkhorst J in
Ex parte Mothuloe (Law Society, Transvaal,
Intervening)
1996 (4) SA 1131
(T) at 1138 D – E, seems to be
the correct one and does away with debates of secondary importance
only.”
20
It is common
cause in this case that the applicant had lodged the notice of
intention to contest the election and the party list
with the local
office of the Commission. The dispute turns on whether it had
lodged an adequate deposit as required by the section.
Before
interpreting what
section 14(1)(b)
and
section 17(2)(d)
mean when
they stipulate “a deposit equal to a prescribed amount, if any,
payable by means of a bank guaranteed cheque in favour
of the
Commission”, it is necessary to consider the central payment
facility instituted by the Commission in these elections.
The first
question that arises is whether that facility was in conflict with
the provisions of
sections 14
and
17
.
Sections 14
and
17
contemplate that the deposit will be paid at the local office of
the Electoral Commission. The bulk payment facility contemplates
however that the payment can be made elsewhere ─ at the head
office of the Commission. The question that arises is whether
to
the extent
sections 14
and
17
state that the payment is to be made
at the local government office, it is a peremptory provision that
prevented the Commission
from providing an alternative location for
payment, in this case, the national office of the Commission. The
purpose of
section 14
(and
section 17)
is to ensure that a deposit
is paid by a political party (or ward candidate) to establish that
they have a serious intention
of contesting the election. There is
no central legislative purpose attached to the precise place where
the deposit is to be
paid. In my view, to interpret
sections 14
and
17
in a manner which prohibits the Commission from making such
a facility available to political parties would be to read the
provision
unduly narrowly and to misunderstand its central purpose.
In effect, what the Commission did, after consulting with the
Party
Liaison Committees,
21
was to make an additional method of payment available to parties in
a manner which facilitated their participation in the elections.

Many parties took advantage of this system. In so doing, the
Commission did not offend the intention of the legislature in
requiring the payment of deposits as stipulated in
sections 14
and
17
of the
Municipal Electoral Act.
An
interpretation of
sections 14
and
17
which accepts that the
Commission had the power to act in such a manner facilitates the
participation in elections and is far
more consistent with our
constitutional values, than reading the section strictly to
prohibit such a payment system. I conclude
therefore that the
provisions in
sections 14
and
17
which state that payment should be
made at the local office of the Commission, properly construed, do
not prevent the Commission
from establishing a system such as the
central payment facility under consideration here. That facility
was available to all
those who wished to contest the elections and
permitted them to make payment at an alternative venue to
facilitate participation
in the municipal elections. The system
was both fair and sensible and facilitated participation in the
elections without undermining
the obligation of candidates and
parties to pay deposits to evidence the seriousness of their
intention of contesting the elections.
Payments made under the
central payment system complied therefore with the provisions of
sections 14
and
17
.
The next
question that arises is how the words “deposit equal to a
prescribed amount, if any, payable by means of a bank guaranteed
cheque in favour of the Commission” in
sections 14(1)(b)
and
17
(2)(d) should be construed. The applicant argues that at 17h00
on 19 January, the Commission was holding funds equivalent to R10
000 on behalf of the applicant which had not been allocated to any
particular local government election and that the availability
of
that surplus was sufficient to constitute a deposit for the Cape
Metro within the terms of
sections 14(1)(b)
and
17
(2)(d). Those
funds had originally been paid to the Commission by way of bank
guaranteed cheque at its national office of the
Commission for the
purposes of paying election deposits. The only shortcoming in the
payment was that the applicant had failed,
prior to the expiry of
the deadline, to notify the Commission that those surplus funds
should be used to meet the deposit due
in Cape Town. The applicant
argues that its failure to notify the Commission of this did not
result in non-compliance with
sections 14
and
17
.
The respondent
disagrees. It argues that because the applicant had originally
indicated that that surplus should be applied to
the elections for
other councils which it subsequently chose not to contest, the
Commission was right in refusing to acknowledge
a portion of the
surplus as a deposit for the Cape Metro. The respondent argues
that if the applicant had informed the Commission
of its intention
not to contest the elections in the other five councils before the
deadline and asked that the surplus be applied
to Cape Town, the
situation would be different and the applicant would then have
complied with the provisions of
sections 14
and
17
.
In considering
whether the surplus payment held by the Commission should be
considered to be in compliance with the provisions
of
sections 14
and
17
, the importance of promoting multi-party democracy and the
political rights of citizens should be borne in mind. Of crucial

relevance also is the underlying statutory purpose of
sections 14
and
17
which appears to be to ensure that candidates and political
parties contesting elections declare their intentions to do so by a
certain date and provide the Electoral Commission with the
necessary information to enable them to organise the elections.

The payment of an electoral deposit ensures that the participation
of political parties and candidates in the elections is not
frivolous. The payment of the deposit is complementary to the key
notification required for organising the elections, namely,
the
notification of the intention to participate and the furnishing of
details of candidates.
In this case,
the applicant had clearly notified the Commission of its intention
to contest elections in the Cape Metro. Indeed,
it had filed the
information of the 105 candidates who were to contest the wards in
the municipal area, as well as its party
list. The Commission
therefore knew that the applicant intended to contest that
election. The Commission also had in its possession
at the
deadline an amount of R10 000 belonging to the applicant.
There would
be little purpose served by a narrow interpretation of
sections 14
and
17
concluding that that surplus did not constitute adequate
compliance with the section.
22
No other party or candidate is harmed by a more generous
interpretation which would hold the provisions of
sections 14
and
17
to have been met. The Electoral Commission itself had sought to
relax the narrow manner in which the requirements of
sections 14
and
17
could be met to facilitate participation in elections, in a
manner consistent with the overall goals of our Constitution. To

hold that the applicant had not complied with the provisions of
sections 14 and 17 simply because it had failed expressly to ask
the Commission to regard a portion of the surplus properly paid to
the Commission for deposits in the elections to Cape Town
promotes
no legitimate purpose of the statute that I can discern.
I should
emphasise that this judgment holds that the applicant had complied
with the provisions of sections 14 and 17 in respect
of the payment
of the deposit. No condonation for non-compliance is in issue. It
holds that in approaching the interpretation
of provisions of
electoral legislation, courts and the Electoral Commission must
understand those provisions in the light of
their legislative
purpose within the overall electoral framework. That framework
must be understood in the light of the important
constitutional
rights and values that are relevant.
In the
circumstances, I conclude that the interpretation of
sections 14
and
17
of the
Municipal Electoral Act proffered
by the respondent
is not correct. Accordingly, the Electoral Commission erred in law
in concluding that the applicant had not
complied with the
provisions of sections 14 and 17 of the Act and in disqualifying
the applicant from contesting the elections
to be held in the Cape
Metropolitan area. Its decision must accordingly be set aside as
must the decision of the Electoral Court.
Although the
applicant has been successful in this Court, we do not consider
this an appropriate matter in which to order costs.
There have
been delays by the applicant as the judgment of the Electoral Court
makes plain and the applicant acknowledges that
the difficulty
arose in this case as a result of an error it made. In the
circumstances, we consider it just and equitable to
make no order
as to costs.
The following
order is made:
1. The
application for leave to appeal is granted.
2. The appeal is
upheld and the order of the Electoral Court is set aside.
3. The decision
of the Electoral Commission disqualifying the applicant from
contesting the elections in the Cape Metropolitan
Council is set
aside.
4. It is declared
that the applicant has complied with the provisions of sections 14
and 17 of the Local Government:
Municipal Electoral Act 27 of 2000
,
and is therefore entitled to contest the local government elections
to be held in the Cape Metropolitan Area on 1 March 2006.
5. The Electoral
Commission is instructed to take all reasonable steps to give
effect to this order.
6. Should it
prove necessary to return to this Court for further directions in
the light of this judgment, either party may do
so on notice to the
other party.
Langa CJ, Moseneke
DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, Sachs J, Van der
Westhuizen J and Yacoob J concur in the judgment
of O’Regan J.
SKWEYIYA J:
I
have had the opportunity of reading the judgment prepared by my
colleague O’Regan J. I am unable to agree with the conclusion
reached and the order that is proposed.
The urgency
of the matter makes it impossible that I give detailed reasons for
my disagreement. The purpose of the application
by the African
Christian Democratic Party, a duly registered political party in
terms of Chapter 4 of the
Electoral Commission Act,
1
is
to allow it to take part as a political party, and its
candidates as candidates, in the Local Government Election for the
City
of Cape Town (Category A Municipality) which is to take place
on 1 March 2006.
The
requirements for a registered political party to participate in
local government elections are governed by
section 14
of the
Municipal Electoral Act.
2
Under
this section:
“
(1) A party may contest an
election in terms of
section 13
(1) (a) or (c) only if the party by
not later than a date stated in the timetable for the election has
submitted to the office
of the Commission's local representative-
(a) in the prescribed format-
(i) a notice of its intention
to contest the election; and
(ii) a party list; and
(b) a deposit equal to a
prescribed amount, if any, payable by means of a bank guaranteed
cheque in favour of the Commission.
. . .
(3) The following documents
must be attached to a party list when the list is submitted to the
Commission:
(a) A prescribed acceptance of
nomination signed by each party candidate; and
(b) a certified copy of that
page of the candidate's identification document on which the
candidate's photo, name and identity number
appear.
(4) If a party omits to attach
to its party list all the documents mentioned in subsection (3), the
Commission must-
(a) notify the party in
writing; and
(b) allow the party to submit
the outstanding documents to the office of the Commission's local
representative by not later than
a date stated in the election
timetable.”
Two
things are clear from this section. First, in terms of
section
14(1)
the nomination forms and payment of the deposit must be
submitted simultaneously in order for there to be compliance with
that
subsection. Second, there is an obligation on the Electoral
Commision (the Commission) to inform a party if there has been
non-compliance
with subsection (3), but no such obligation arises
in respect of subsection (1), and there is clearly no discretion to
condone
non-compliance in respect of either subsection after the
date stated in the election timetable.
It
is clear from the provisions of this section that in order for
there to be a valid nomination the prescribed form must be

submitted and this must be accompanied by payment of the required
deposit. In order for the form to be accepted there must have
been
payment. An agreement made between the Commission and the parties
intending to contest the Local Government Election scheduled
for 1
March 2006, dispensed with requirement (1)(b) of
section 14
, and
allowed for a deviation with regard to payment. Instead of having
to submit a bank guaranteed cheque along with each nomination
form,
a bulk payment could be made at a central payment point to cover
all of a party’s intended nominations. Following that
the party
would then submit nomination forms individually as before.
The new
procedure did not override or replace the procedure prescribed in
section 14
, it merely presented an alternative for the convenience
of the parties contesting the election. So the nature of the
deposit
did not change, only the place where it was to be paid.
Accordingly, if the new system was
utilised
by a party, a deposit would have to have been made in respect of
the relevant municipalities at the central payment point at
the
time that the nomination form was submitted. There has been
argument made by the parties regarding the authority of the form
that accompanies the bulk payment and its legal significance. This
form must be seen as deriving its authority directly from
section
14
, it ensures that the same process happens in respect of the new
payment system as with the original one – that at the time

payment is made, it is made in respect of a specific municipality.
To allow the new system to operate differently to the procedure
required under
section 14(1)
results in the unequal treatment of
parties. Depending on which system they choose to follow there
will be different consequences
for how payment operates. The
requirements must be the same for all parties regardless of which
system they use.
On
the facts, what occurred here was that the applicant submitted a
bank guaranteed cheque for R283 000 at the central payment
point,
as well as a list indicating to which municipalities the bulk
deposit was to be allocated, the Cape Town Metro was not
on this
list. Further, the amount paid by the applicant - by way of a bank
guaranteed cheque which had been drawn prior to arrival
at the
central payment point - corresponded to the list which was handed
in with the deposit, which meant that payment had not
been made in
respect of the Cape Town Metro at all at any time before the cut
off date. The applicant’s Cape Town representative
then went to
the local office there and submitted their nomination form.
Therefore, the applicant submitted nomination forms
to the relevant
office, however, it failed to pay the deposit in respect of this
area. This must be classified as non-compliance
with
section 14.
The
question is then whether the Commission is required to notify a
party that there has been non-compliance prior to the cut
off date.
Section 14(4)
expressly requires the Commission to notify a party
before the cut off date where there is non-compliance with
section
14(3)
, but nothing is said in relation to
section 14(1).
The fact
that the Act is silent must be taken to mean that there is no such
requirement on the Commission, and that the onus
is on the party
concerned to ensure that everything is in order. It is important
to view the responsibilities of the Commission
and a political
party respectively in terms of section 14, in the context of the
electoral process more generally.
The
affidavit of Norman William Du Plessis, Deputy Chief Electoral
Officer of the Commission is most helpful as an indication
of the
immensity of the task which the Commission performs. In respect of
preparation for the Cape Town Metro election alone,
there are 105
wards, each with an individual ballot paper, totaling 1 525 100
ballot papers. In addition, one proportional ballot
paper is
required for the Cape Metro elections on which the details of each
political party appear. There are currently 21 political
parties
contesting the proportional elections necessitating the preparation
of 1 525 100 proportional ballot papers. In sum,
the total number
of ballot papers that the Commission has to prepare for the Cape
Town Metro Elections alone exceeds 3 million.
This
process of preparation involves the following:
Designing the ballot papers and arranging the parties in
alphabetical order
Printing and verifying draft ballot papers
Submitting draft ballot papers to the local Party Liaison Committee
for verification
Compiling electronic copies of the final ballot papers
Delivering electronic copies of the individual ballot papers to the
printer
Printing of proof ballots
Approval of proof ballots
Printing of approved ballots
Binding of ballot papers in books of 100 ballots each
Verification that each book contains 100 ballot papers (ballot
papers are not numbered and exact quantities have to be verified
in
order to be able to reconcile during the counting process)
The same verification needs to take place for the proportional
party ballot
Plastic wrapping of each ballot book (for protection and to prevent
loss of individual ballots)
Packing of wrapped ballot books in boxes and labelling of boxes
indicating ward number(s) and quantities
All of the above steps need to take place in a secure and
supervised environment and with reliable and accountable staff to

ensure the security of ballot papers
Distribution to the office of the Municipal Electoral Officer (MEO)
Unpacking and splitting into voting district parcels
Distribution of individual ballot paper parcels to the 758
presiding officers concerned.
3
Note that all
of this preparation needs to be repeated for every municipality.
This is just what the Commission is required to
do
after
the
list of contesting parties and their nominated candidates are
finalised.
In light of the magnitude and complexity of this
task, the need for political parties to do all they can to assist
the Commission
in its management of elections is quite clear. The
Commission cannot be expected to bear the responsibility for
ensuring that
all the nomination and registration formalities have
been complied with by every party in every instance. It is
critical for
the fulfillment of our constitutional commitment to
free and fair elections that parties engage with the democratic
process and
bear their share of the responsibility for its
effective functioning.
In addition,
part and parcel of the idea of sharing the load of responsibility
between parties and the Commission is the notion
that the
Commission bears equal responsibility to each individual party.
The functions the Commission is expected to perform
in respect of
each party cannot be heightened because of a party’s failure to
comply with a procedural requirement laid out
in the
Municipal
Electoral Act. As
succinctly put by the Electoral Court “if the
election timetable is not adhered to equally by all parties, it
will compromise
the legitimacy and fairness of the elections.”
4
This Court
has considered the question of non-compliance with the electoral
timetable in
Liberal Party v Electoral Commission and others
.
5
Although that case dealt with provisions of the Electoral Act
6
and not the
Municipal Electoral Act, the
principles elucidated
therein are equally applicable to a consideration of non-compliance
with the latter act. In particular,
the following dictum is of
significance:
“
The
applicant’s inability to contest the forthcoming election,
therefore, arises solely from its failure to comply with the
mandatory
provisions of the Electoral Act and regulations and cannot
be laid at the door of the Commission.”
7
The
applicant’s non-compliance with section 14 has already been
established. On 24 January, the applicant contacted the Commission
and requested them to allocate R3000 of the R10 000 ‘surplus’
to the Cape Town Metro. The Commission refused to do so.
Had it
agreed, it would in effect have been condoning non-compliance with
the prescribed time limit. The question which then
remains to be
answered is whether the Commission has a discretion to condone
non-compliance. The existence or otherwise of such
a discretion
must be determined in the context of the democratic process more
broadly.
In South
Africa, free and fair multi-party elections form the high water
mark of our democracy. The crucial importance of such
elections in
South Africa cannot be overstated. One need only look at our
turbulent and painful history to get a powerful reminder
of this.
Section 1(d) of the founding provisions of our Constitution
8
declares that:
“
The Republic of South Africa
is one, sovereign, democratic State founded on the following values:
. . .
Universal adult suffrage, a
national common voter’s roll, regular elections and a multi-party
system of democratic government,
to ensure accountability,
responsiveness and openness.”
The desired
outcome of our constitutional commitment to democratic governance
is the creation of an environment in which both
voters and
political parties alike feel free to participate in the democratic
structures which give shape to our democracy.
This case reminds us
that if multi-party democratic governance is the end, then the
democratic process is the means. Thus free
and fair municipal
elections can only be attained through the democratic process.
A process by
its very nature involves the operation of certain procedures.
Moreover, adherence to such procedures is a critical
precondition
for the functioning of the process and hence the attainment of the
desired outcome. This may seem an abstract construction.
It is
however capable of tangible illustration at the level of municipal
elections. The development of the process from which
municipal
elections result, falls within the competence of the Commission
which was created by the Constitution for the purpose
of
strengthening constitutional democracy.
9
The Commission
has been hailed as a statutory body with wide powers in relation to
elections, including their management.
10
Its objects are set out in
section 4
of the
Electoral Commission
Act 51 of 1996
as being to ‘strengthen constitutional democracy
and promote democratic electoral processes’. At this juncture
let the emphasis
on process be noted. In order to achieve these
objects, the functions of the Commission include managing any
election,
11
ensuring that any election is free and fair
12
and promoting conditions conducive to free and fair elections.
13
Section 190(1)(a) of the Constitution requires the Commission to
manage elections in accordance with national legislation.
Such
legislation exists in the form of the
Municipal Electoral Act. In
the context of municipal elections, this Act serves as the roadmap
for the democratic process. The Commission is charged with
administering the
Municipal Electoral Act in
a manner conducive to
free and fair elections.
14
In order to
empower the Commission to achieve its objects and perform its
functions, it is given wide powers which encompass the
performance
of any act necessary.
15
One such power which is specifically mandated in
section 11
of the
Municipal Electoral Act directs
the Commission to compile an
election timetable as soon as an election has been called.
16
In fact there are no less that nine references to the election
timetable in the
Municipal Electoral Act. These
can be found in
sections 6(2)
,
14
(1),
14
(4)(b),
15
(1),
15
(3),
17
(1),
18
(1),
19
(5)
and
22
(1). The fact that so many provisions of the Act are made
subject to the election timetable is indicative of the importance
of
adhering to the timeframe established by the Commission for the
running of free and fair elections. Given the immense task of
organising an election of unimpeachable integrity at municipal
level in South Africa, such adherence takes on added significance.
The link
between the attainment of free and fair elections and the way in
which elections are structured emerges clearly from
this Court’s
finding in
New National Party of South Africa v Government of
the Republic of South Africa and Others.
17
In that case, the applicant contended that certain provisions of
the Electoral Act were inconsistent with the Constitution because
only bar-coded identity documents could be used for the purposes of
voting and registering for the 1999 national and provincial
elections.
Thus what was
in issue in that case was the way in which citizens had to register
and vote. Before answering the question whether
these requirements
constituted an infringement of the right to vote, this Court
outlined the context of such an enquiry. What
is significant for
our purposes is that an important part of that context involved an
examination of “the importance of the
need for an effective
exercise of the right to vote and
the degree of regulation
required to facilitate the effective exercise of the right.
”
18
(my emphasis)
This Court
highlighted that:
“
[t]he importance of the
right to vote is self-evident and can never be overstated. There is,
however, no point in belabouring its
importance and it is sufficient
to say that the right is fundamental to a democracy, for without it
there can be no democracy.
But the mere existence of the right to
vote without proper arrangements for its effective exercise does
nothing for a democracy
; it is both empty and useless.”
19
(my emphasis)
The Court went
on to declare that:
“
The right to vote is, of
course, indispensable to, and empty without, the right to free and
fair elections; the latter gives content
and meaning to the former.
The right to free and fair elections underlines the importance of
the exercise of the right to vote
and the requirement that every
election should be fair has implications for the way in which the
right to vote can be given more
substantive content and legitimately
exercised. Two of these implications are material for this case:
each citizen entitled to
do so must not vote more than once in any
election; any person not entitled to vote must not be permitted to
do so. The extent
to which these deviations occur will have an
impact on the fairness of the election. This means that
the
regulation of the exercise of the right to vote is necessary. . . in
order to ensure the proper implementation of the right
to vote
.”
20
Further that:
“
The Constitution recognises
that it is necessary to regulate the exercise of the right to vote
so as to give substantive content
to the right. Section 1(d)
contemplates the existence of a national common voters roll.
Sections 46(1), 105(1) and 157(5) of the
Constitution all make
significant provisions relevant to the regulation of the exercise of
the right to vote. . . .
The right to vote contemplated
by s 19(3) is therefore a right to vote in free and fair elections
in terms of an electoral system
prescribed by national legislation
which complies with the aforementioned requirements laid down by the
Constitution. The details
of the system are left to Parliament. The
national legislation which prescribes the electoral system is the
Electoral Act.”
21
Significantly
for our purposes, Yacoob J went on to point out that:
“
The process of registration
and voting needs to be managed and regulated in order to ensure that
the elections are free and fair.
The creation of a Commission to
manage the elections is a further essential, though not sufficient,
ingredient in this process.
In order to understand the enormity of
the problem, one has just to picture the spectre of millions of
South Africans arriving
at registration points or voting stations
armed with all manner of evidence that they are entitled to register
or to vote, only
to have the registration or electoral officer sift
through this evidence in order to determine whether or not each of
such persons
is entitled to register or to vote. It is to avoid this
difficulty that the Electoral Act makes detailed provisions
concerning
registration, voting and related matters, including the
way in which voters are to identify themselves in order to register
on
the common voters roll and to vote.”
22
The
above statement deals with the critical importance of regulation
from the perspective of those doing the voting. The issue
before
this Court is the importance of regulation but from the perspective
of those being voted for. Just as the spectre of
millions of South
Africans arriving at registration points or voting stations armed
with all manner of evidence that they are
entitled to register or
to vote is unthinkable, so too is the thought of hundreds of
political parties attempting to stand for
elections with a
hodge-podge of compliance with Commission procedures between them.
What the dicta
in the New National Party case point to is the fact that
participation in free and fair elections is underscored
by
effective management of the process of such elections. The more
procedural aspects of the management of elections may not
be
particularly glamorous. Functions like the issuing of an election
timetable as well as ensuring that all relevant parties
comply with
that timetable is part of the nitty gritty of the running of an
election. But the importance of such nuts and bolts
is paramount.
Should the procedural matrix for the running of an election
crumble, a citizen’s right to vote becomes an empty
right in the
absence of an effective framework in which to stage elections.
Viewed in this context, absolute compliance with
the procedures
laid down by the Commission acquires increased import. To me, the
process is as important as the actual exercise
of the citizen’s
right to vote. This case does not require us to consider whether
“sufficient” compliance with a relatively
inconsequential
technicality exists, but rather whether absolute compliance with a
procedural requirement forming part of the
framework which enables
the right to vote in free and fair elections to be enjoyed in a
meaningful way, has been achieved.
In conclusion,
non-compliance with the procedures required by
section 14
of the
Municipal Electoral Act has
been shown. The applicant failed to
submit a deposit in respect of the Cape Town Metro before the cut
off date as contained
in the election timetable published in the
Government Gazette. Given this finding, the only way in which the
applicant would
be able to contest the election in the Cape Town
Metro would be if the Commission is entitled to exercise a
discretion to condone
procedural non-compliance. As has been
demonstrated above, the Commission cannot enjoy such discretion if
the integrity of the
democratic process is to remain intact.
Therefore, the applicant must fail in its attempt to compel the
Commission to enrol
them in the election.
For the applicant: Ismail Jamie SC and Michael Osborne instructed by
Vincent van Bergh Attorneys.
For the respondent: JC Heunis SC instructed by L Mbanjwa
Incorporated.
1
African
Christian Democratic Party v The Electoral Commission and Others
Case No 1/2006 as yet unreported decision of the Electoral Court
dated 15 February 2006.
2
Section
159
provides as follows:
“
Terms of Municipal Councils
(1) The term of a Municipal Council may be no more than
five years, a determined by national legislation.
(2) If a Municipal Council is dissolved in terms of
national legislation, or when its term expires, an election must be
held within
90 days of the date that Council was dissolved or its
term expired.
(3) A Municipal Council, other than a Council that has
been dissolved following an intervention in terms of
section 139
,
remains competent to function from the time it is dissolved or its
term expires, until the newly elected Council has been declared
elected.”
3
Section
24
of the
Local Government: Municipal Structures Act 117 of 1998
provides as follows:
“
Term of municipal councils
(1) The term of municipal councils is five years,
calculated from the day following the date set for the previous
election of all
municipal councils in terms of subsection (2).”
4
Notice
22 of 2006 published in Government Gazette 28386 of 6 January 2006.
5
There
are contradictory statements on the record as to whether the payment
of R283 000 was made by way of one bank guaranteed cheque
or two.
Nothing turns on this.
6
Party
Liaison Committees were established by Regulations issued by the
Electoral Commission in terms of the
Electoral Commission Act. See
R824 published in Government Gazette 18978 dated 19 June 1998.
According to
regulation 6
, their function is to “serve as vehicles
for consultation and co-operation between the Commission and the
registered parties
concerned on all electoral matters, aimed at the
delivery of free and fair elections”.
7
[2004] ZACC 1
;
2004
(8) BCLR 810
(CC) at para 15.
8
Section
19 of the Constitution provides as follows:
“
19
Political rights
(1) Every citizen is free to make political choices,
which includes the right-
(a) to form a political party;
(b) to participate in the activities of, or recruit
members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and
regular elections for any legislative body established in terms of
the Constitution.
(3) Every adult citizen has the right-
(a) to vote in elections for any legislative body
established in terms of the Constitution, and to do so in secret;
and
(b) to stand for public office and, if elected, to hold
office.”
9
Section
39(2) provides as follows:
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights.”
10
See
National Education Health and Allied Workers Union v University of
Cape Town
2003
(3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 14;
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at para 7.
11
See
sections 190 and 191 of the Constitution.
12
See,
for example,
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998
(2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) para 8;
Member
of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 32;
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) para 12;
Fraser
v Naude and Others
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) para 10;
Islamic
Unity Convention v Independent Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (5) BCLR 433
(CC) paras 15-19;
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(4) SA 623
(CC);
1999 (7) BCLR 771
(CC) para 35;
Moseneke
and Others v The Master and Another
[2000] ZACC 27
;
2001
(2) SA 18
(CC);
2001 (2) BCLR 103
(CC) para 19;
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC),
2002 (8) BCLR 771
(CC) para 8.
13
See
Nehawu v
University of Cape Town and Others
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) para 30 – 31.
14
Section
20(2)(c) is cited above at paragraph 13 .
15
Section
1 of the Constitution.
16
[1999] ZACC 3
;
1999
(3) SA 1
(CC);
1999 (4) BCLR 363
(CC) at para 17.
17
The
text of section 14 is reproduced in para 4 above.
18
The
text of section 17 is reproduced in para 4 above.
19
1964 (4) SA 638
(A) at 646 C. See also
Shalala
v Klerksdorp Town Council
& Another
1969 (1) SA 582
(T) per Colman J at 587H – 588 C;
Kopel
v Marshall and Another
1981 (2) SA 521
(W) per Margo J at 524 E – F;
Beukes
NO v Mdhlalose
,
Mdhlalose v Mkhonza and Another
1990 (2) SA 768
(N) per Wilson J at
774 J – 775 C.
20
2002
(4) SA 653
(SCA) at 659.
21
See
above n 6.
22
See the similar reasoning of Miller J in
Waxa
and another v Returning Officer Butterworth Town Council and others
[1998]
JOL 311
(Tk).
1
Act
51
of 1996
2
Local
Government:
Municipal Electoral Act 27 of 2000
.
3
Affidavit
of Norman William Du Plessis, Deputy Chief Electoral Officer of the
Independent Electoral Commission at para 8.
4
Record
Vol 1 pg 28.
5
[2004] ZACC 1
;
2004
(8) BCLR 810
(CC).
6
Act
73
of 1998.
7
Above
n5 at para 30.
8
The
Constitution of the Republic of South Africa, 1996.
9
Section
181(1)(f) of the Constitution.
10
Mketsu
and others v African National Congress and others
2003 (2) SA 1
(SCA).
11
Above
n1, section 5(1)(a).
12
Id,
section 5(1)(b).
13
Id,
section 5(1)(c). These functions mirror those set out in s190 of
the Constitution.
14
Above
n2, section 4(2).
15
Above
n1, section 5(2)(d).
16
Section
11 reads:
(1) When an election has been
called, the Commission must-
(a)   compile a timetable for the
election; and
(b)   publish the election timetable in
the Government Gazette , or, in the case of a by-election, in the
Provincial
Gazette of the province concerned.
(2)
The Commission may, by notice as required in subsection (1) (b) ,
amend the election timetable if-
(a)   it considers it necessary
for a free and fair election; or
(b)   the
voting day is postponed
17
[1999] ZACC 5
;
1999
(3) SA 191
(CC).
18
Id
at para 10.
19
Id
at para 11.
20
Id
at para 12.
21
Id
at paras 13-14.
22
Id
at para 16.